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New bill reinforces media's freedom, independence and pluralism

A new bill that aims to reinforce the media's freedom, independence and pluralism is progressing through the houses of the French Parliament. It was adopted at the first reading by the National Assembly on March 8 2016 and has now been forwarded to the Senate in accordance with the French legislative process.

The bill includes two major modifications to the regime governing terrestrial television and radio broadcasters set out in the Communication Act of September 30 1986.

First, Article 7 of the bill obliges general national radio broadcasters and television broadcasters that show political and general information programmes to create a new committee, comprised of independent individuals, to help ensure "the honesty, the independence and the pluralism of information and programs". The committee would assist with compliance with the main principles imposed on these broadcasters under the Communication Act, which include:

broadcasting programmes that illustrate the diversity of French society;

promoting the reputation of French overseas territories; and

fighting discrimination.

The committee would be available for consultation for its opinion at any time by the broadcaster's management bodies, a mediator or any other person. It would also be responsible for informing theConseil supérieur de l'audiovisuel (CSA) – the audiovisual regulatory authority – of anything which might infringe these principles. Finally, the committee would also draft an annual report, which will be made public.

Second, Article 9 of the bill aims to clarify the system introduced under the Communication Act to limit non-EU participation in the share capital of terrestrial television and radio broadcasters.

Pursuant to the Communication Act, the use of frequencies or radio-electric resources for terrestrial television and radio broadcasting in France is subject to the prior authorisation of the CSA. Article 40 of the act sets out in parallel a system that limits foreign participation in television or radio broadcasting companies which benefit from such authorisation. A foreign person or entity cannot acquire shares amounting to 20% or more of the share capital of such companies. This provision aims to prevent broadcasters from excessive foreign influence, in order to ensure their independence and protect French culture.

The French Administrative Supreme Court – the Conseil d'Etat – had issued an opinion on this provision stating that, based on European Court of Justice (ECJ) case law, individuals or entities of other EU member states must be treated as French nationals for the purpose of Article 40. However, theConseil d'Etat also specified that the nationalities of shareholders of such EU companies must be verified for the purpose of Article 40.

The Conseil d'Etat subsequently relaxed this regime in a decision of February 4 2015,(1) in which it adopted a narrow interpretation of the scope of Article 40. According to the Conseil d'Etat, this measure aims to prevent foreign entities or persons from acquiring excessively large shareholdings in CSA-authorised terrestrial broadcasters. According to that ruling, it should not apply to companies that are applying for CSA authorisation. In other words, a company whose share capital is more than 20% owned by foreign entities or persons could still apply for CSA authorisation.

Following this recent ruling, the deputies voted in favour of a change in the law for the scope of application of Article 40 to be clarified, in order to go against the Conseil d'Etat's interpretation. Article 9 of the bill thus states that terrestrial television and radio broadcasting companies which are more than 20% owned by foreign investors can neither apply for nor hold CSA authorisation. The wording does not expressly state that this restriction applies only to non-EU shareholders, but this should still be considered the case given that the relevant ECJ case law is well established.

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